Opinion
Nos. 34547-1-II; 34553-6-II.
August 7, 2007.
Appeals from a judgment of the Superior Court for Clark County, No. 05-1-02317-1, Diane M. Woolard, J., entered December 20, 2005.
Affirmed in part and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, A.C.J., and Bridgewater, J.
The facts detailing James Raymond Nelson's crimes are not in the record on appeal. From the appellate record, we do know that on October 24, 2005, the State filed information charging Nelson with forgery (Count 1); second degree possession of stolen property (Count 2); and bail jumping on class B or C felony (Count 3). Three days later, the State filed a separate information charging Nelson with unlawful imprisonment, domestic violence (Count 1-a); and third degree malicious mischief, damage exceeding $50, domestic violence (Count 2-a).
Also known as James Richard Nelson and Jimmy Nelson.
We have added an "a" to the second set of charges for clarification purposes only.
Nelson pleaded guilty to forgery (Count 1) and unlawful imprisonment, domestic violence (Count 1-a). In exchange, the State agreed to dismiss all the remaining charges. At sentencing, Nelson disputed the State's calculation of his offender score. The trial court ruled that there was sufficient evidence showing Nelson's offender score was nine points.
Following the State's recommendation, the trial court dismissed Counts 2, 3, and 2-a and sentenced Nelson to 29 months for the forgery charge to be served concurrently with the 51-month sentence for the unlawful imprisonment charge, plus 9 to 18 months in community placement for the unlawful imprisonment charge.
The trial court declined Nelson's request to be screened for drug offender sentencing alternative, which was not included in the plea agreement.
On appeal, Nelson's counsel challenges the calculation of his offender score and argues that the trial court's term of community placement exceeded the maximum sentence. In a pro se statement of additional grounds (SAG), Nelson raises five additional issues and asserts that the trial judge should have disqualified herself from hearing the case.
Nelson argues that: (1) the trial court erred when it failed to recuse itself or be disqualified from his case; (2) his trial counsel was ineffective; (3) the trial court and the State violated the plea agreement; (4) the trial court erred when it changed its ruling about "washing out" his prior convictions; and (5) the State engaged in "barred behavior." SAG at 4.
For the reasons stated below, we affirm Nelson's conviction and remand for clarification of the sentence to not exceed the maximum sentence.
DISCUSSION
Sentence
Nelson argues that the trial court miscalculated his offender score by improperly including Nelson's washed-out third degree burglary conviction and failing to determine whether his Lewis County, Washington, convictions were the same criminal conduct. We disagree.
A. New York Third Degree Burglary Conviction
In Washington, the State has the burden of proving the existence of the prior conviction by preponderance of the evidence at sentencing. State v. Ross, 152 Wn.2d 220, 232, 95 P.3d 1225 (2004) (quoting State v. Ford, 137 Wn.2d 472, 479-80, 973 P.2d 452 (1999)). The State must prove that a prior out-of-state conviction used to increase an offender score would have been a felony if committed in Washington. Ross, 152 Wn.2d at 232 (quoting Ford, 137 Wn.2d at 479-80).
New York charged Nelson with third degree burglary alleging that "on or about the 16th day of September 1980, with intent to commit a crime therein, [he] knowingly entered and remained unlawfully in a building, to wit, a house owned by Aaron Wagner, located at 83 Williams Avenue, Hillcrest, New York." Clerk's Papers (CP) at 22.
The record is unclear as to whether Nelson had at any time attempted to raise a comparability issue or whether he only focused on whether the New York burglary conviction washed out. His counsel's remarks suggest that previous Washington sentencing courts had been inconsistent, some courts including the New York conviction in calculating Nelson's offender score while others omitting it apparently ruling that it had washed out.
Nelson's trial counsel stated:
. . . what has happened previously — and I can give the Court a copy of the previous [judgment and sentence]. And the State in there indicates, I think, sometimes . . . the New York charge has been counted and sometimes it [has not].
Report of Proceedings (RP) at 19.
The State provided certified copies of Nelson's New York third degree burglary conviction. Based on these documents, the sentencing court ruled that the elements of the New York and Washington burglary statutes are similar. Thus, Nelson's New York third degree burglary conviction is comparable to Washington's second degree burglary and adds one point to Nelson's offender score.
In New York, a person is guilty of third degree burglary "when he knowingly enters or remains unlawfully in a building with intent to commit a crime therein." N.Y. Penal Law § 140.20. Under N.Y. Penal Law section 140-00(2), a "building":
in addition to its ordinary meaning, includes any structure, vehicle or watercraft used for overnight lodging of persons, or used by persons for carrying on business therein, or used as an elementary or secondary school, or an inclosed motor truck, or an inclosed motor truck trailer. Where a building consists of two or more units separately secured or occupied, each unit shall be deemed both a separate building in itself and a part of the main building.
In Washington, a person is guilty of burglary if "with intent to commit a crime against a person or property therein, he enters or remains unlawfully in a building." RCW 9A.52.030, .025. In addition, Washington's RCW 9A.04.110(5) defines "building" as:
in addition to its ordinary meaning, includes any dwelling, fenced area, vehicle, railway car, cargo container, or any other structure used for lodging of persons or for carrying on business therein, or for the use, sale or deposit of goods; each unit of a building consisting of two or more units separately secured or occupied is a separate building.
B. Wash out
Nelson next argues that even if the New York burglary charge was comparable to Washington's second degree burglary, the trial court nevertheless erred when it included this conviction in his offender score because it should have "washed out" when the State failed to prove that he had not been crime-free for 10 years following the conviction. The State provided the trial court with a certified report to prove that Nelson had been convicted of misdemeanor assault IV in Oregon in 1990. Nelson objected that the document was not adequately authenticated for the purposes of the sentencing hearing.
A "washed out" prior conviction cannot be used to calculate a defendant's offender score. In re Pers. Restraint of LaChapelle, 153 Wn.2d 1, 6, 100 P.3d 805 (2004). A Class B prior conviction washes out when "the offender had spent ten consecutive years [from the last date of release from confinement] in the community without committing any crime that subsequently results in a conviction." RCW 9.94A.525(2). The best evidence of a prior conviction is a certified copy of the judgment. Ford, 137 Wn.2d at 480 (citing State v. Cabrera, 73 Wn. App. 165, 168, 868 P.2d 179 (1994)). But the State may also introduce other comparable documents of record or transcripts of prior proceedings to establish criminal history. Ford, 137 Wn.2d at 480 (citing Cabrera, 73 Wn. App. at 168).
For a class C offense, prior conviction washes out when the offender "had spent five consecutive years in the community without committing any crime." RCW 9.94.525(2).
A document or report prepared by a public official is properly admitted when (1) it contains facts, not conclusions, involving the exercise of judgment or discretion or the expression of opinion; (2) it is retained for the benefit of the public; (3) the subject matter relates to facts that are of a public nature; (4) it is prepared by an entity with expressed statutory authority to compile the report. See State v. Monson, 53 Wn. App. 854, 856, 771 P.2d 359 (quoting Steel v. Johnson, 9 Wn.2d 347, 358, 115 P.2d 145 (1941)), aff'd, 113 Wn.2d 833 (1989). Duly certified public records may be admitted in evidence in the courts of this state. Monson, 53 Wn. App. at 857.
Here, the State provided the trial court with a certified copy of a City of The Dalles Municipal Court report. The Oregon document provided Nelson's full name; social security number; date of birth; address; height and weight; eye and hair color; the date of the offense (October 31, 1990); the offense (assault IV); the citation number (S14392); and disposition (nine days in jail November 7, 1990, and recoupment of attorney fees, $400). The document was signed and certified by the Municipal Court Clerk. Thus, the trial court properly relied on this evidence as proof that Nelson had not spent 10 crime-free years in the community and that under RCW 9.94A.525(2), his 1980 third degree burglary conviction should be included in his criminal history when calculating his offender score.
C. Washington Convictions
Next, Nelson contends that the trial court should have reanalyzed whether Nelson's prior 2000 Lewis County, Washington, convictions for second degree assault and harassment were the same criminal conduct. We disagree.
We reverse a sentencing court's determination of what constitutes the same criminal conduct only for an abuse of discretion or misapplication of the law. State v. Burns, 114 Wn.2d 314, 317, 788 P.2d 531 (1990); State v. Grantham, 84 Wn. App. 854, 857, 932 P.2d 657 (1997).
Here, the State presented certified copies of the Lewis County statement of defendant on plea of guilty and judgment and sentence form. These documents show that the initial sentencing court found that Nelson's second degree assault and harassment charges were not the same criminal conduct for sentencing purposes. The decision of the initial sentencing trial judge is final and controls subsequent calculations of Nelson's offender score in future sentencings. See State v. Blakey, 61 Wn. App. 595, 599, 811 P.2d 965 (1991) (recognized the need for judicial finality and held a defendant cannot, at the time of the sentencing on a current charge, reopen prior convictions because they were not appealed and were final).
The Lewis County Superior Court did not merge Nelson's two convictions and ruled, "Current offenses encompassing the same criminal conduct and counting as one crime in determining the offender score are (RCW 9.94A.400): NONE." CP at 36 (emphasis added).
D. Community Custody
Nelson argues that the trial court erred when it sentenced him to 51 months in confinement plus 9 to 18 months of community custody because a total sentence of 69 months exceeds the statutory maximum of 60 months for a class C felony.
Citing State v. Sloan, 121 Wn. App. 220, 87 P.3d 1214 (2004), the State concedes that a remand for clarification of the judgment and sentence is appropriate here. We agree.
If the trial court intended to impose 9 months community custody, Nelson's total sentence would not exceed the statutory maximum 60 months; but if the court intended to impose the high end of its stated range, 18 months, the total sentence imposed exceeded the statutory maximum by 9 months.
In Sloan, Division One recognized that sentences like Nelson's generate uncertainty in some circumstances:
To avoid confusion, therefore, when a court imposes community custody that could theoretically exceed the statutory maximum sentence for that offense, the court should set forth the maximum sentence and state that the total of incarceration and community custody cannot exceed that maximum.
Sloan, 121 Wn. App. at 223-24.
We affirm the sentencing court's calculation of Nelson's offender score, but we remand for clarification of Nelson's judgment and sentence to expressly state that the total term of Nelson's confinement on these charges may not exceed 60 months. SAG Issues
A. Judicial Bias
In his SAG, Nelson argues, for the first time, that the trial court judge was biased and should have been recused from hearing his case because, according to Nelson, the judge had been a victim of domestic violence.
We cannot review this claim on the record before us. The claim involves evidence extrinsic to the trial record. See State v. McFarland, 127 Wn.2d 322, 338, 899 P.2d 1251 (1995) ("a personal restraint petition is the appropriate means of having the reviewing court consider matters outside the record"). No evidence corroborates Nelson's claim that the trial judge had been the victim of a crime. More importantly, our review of the record contains no indication that the trial court was biased or prejudiced against Nelson. Indeed, as stated above, the judge properly resolved the sentencing issues presented and any other judge would have decided these issues similarly.
Nelson also contends that the judge was not paying attention and mistakenly referred to Nelson as "Mr. Jones." RP at 3. The record reflects that the judge mistakenly referred to Nelson as Mr. Jones, but immediately corrected herself.
The portion of the record showing the name issue is as follows:
Ms. Hart [prosecutor]: So it's an original Information, but plea to Count I, dismiss II and III.
The Court: Okay.
Ms. Hart: And then Ms. Jones has (inaudible). The Court: All right. So, Mr. Marlton, is that correct?
Mr. Marlton [defense counsel]: Yes, Your Honor.
The Court: Okay. Mr. Jones, is that your — or Mr. Nelson, is that your understanding?
Mr. Nelson: Yes, Your Honor.
RP at 2-3.
B. Change in Trial Court Finding
Nelson alleges that the trial court changed its finding that the New York conviction
"washed out." As set out above, prior convictions are generally included in calculating a defendant's offender score. RCW 9.94A.525(2), 030(14)(b). The record indicates that while the trial court was analyzing whether Nelson's Lewis County convictions were the same criminal conduct, defense counsel interrupted and asked whether Nelson's New York conviction had washed out. The trial court properly held that Nelson had an offender score of nine points. The trial court's oral rulings, taken in context, are consistent with the judgment and sentence.
Review of the record shows that all the parties involved consistently spoke over one another, including speaking while the trial judge was talking. On two separate occasions, defense counsel asked Nelson to be quiet and let counsel finish his argument because Nelson himself was repeatedly interrupting his own trial counsel. The record also reflects several instances where the tape of the hearing was inaudible to the transcriptionist.
C. Ineffective Assistance of Counsel
Nelson next argues that his trial counsel was ineffective for: (1) failing to timely move to disqualify the judge; (2) presenting a defense that was "half-hearted and uninspired, lacking rebuttal, argument, or complete thoughts"; and (3) not scrutinizing the police report. SAG at 5.
To establish ineffective assistance of trial counsel, Nelson must show (1) that his counsel's performance was deficient, and (2) that the deficient performance prejudiced Nelson. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). Counsel's performance is deficient when it falls below an objective standard of reasonableness. In re Pers. Restraint of Pirtle, 136 Wn.2d 467, 965 P.2d 593 (1998). Prejudice occurs when, but for the deficient performance, there is a reasonable probability that the outcome would have differed. Pirtle, 136 Wn.2d at 487. As to each allegation of ineffective assistance, Nelson has failed to make the necessary showings of deficient performance and prejudice: The record contains no evidence to support a motion for recusal or suggesting that trial counsel or the trial court had never "scrutinized" the police report. These requests are outside the record and cannot be reviewed on appeal. McFarland, 127 Wn.2d at 338; State v. Belgarde, 46 Wn. App. 441, 452, 730 P.2d 746 (1986), vacated, 110 Wn.2d 504 (1988). Moreover, we have reviewed the record and find no support for Nelson's ineffective assistance of counsel claim.
D. Plea Agreement
Nelson next asks us to determine whether the trial court and the State violated the plea agreement.
The trial court cannot violate a plea agreement. The "prosecutor and the defendant are the only parties to a plea agreement." State v. Sanchez, 146 Wn.2d 339, 348, 46 P.3d 774 (2002) (quoting State v. Wakefield, 130 Wn.2d 464, 474, 925 P.2d 183 (1996)). Furthermore, the plea agreement has not been included in our appellate record and Nelson does not elaborate on what State action constituted a violation.
E. State's "Barred Behavior"
Nelson contends, for the first time on appeal, that the State engaged in "barred behavior"
and the trial court refused to address his concerns about it. SAG at 4. But the record does not show that Nelson objected to prosecution behavior below and we cannot tell what alleged "barred behavior" Nelson is referring to.
We affirm Nelson's conviction and remand for correction of the judgment and sentence to specify Nelson's maximum sentence within the range previously imposed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
BRIDGEWATER, J., VAN DEREN, A.C.J., concur.